By Andrew J. Hebar and Brendan M. Walsh
Every great, eye-catching article requires something fascinating. What could be more appropriate in accomplishing that goal than statistics? According to the Tennessee Department of Labor, 60% of the world’s illegal drugs are consumed in the United States, and 70% of those drug users are employed. Twenty-five percent of employed Americans aged 18-35 have used illegal drugs, and 20% of young workers have admitted to using marijuana at work. It is further estimated that 38-50% of workers’ compensation claims are related to drug use.
In addition to these already bleak statistics, drug users also incur 300% higher medical costs, are 2.5 times more likely to be absent eight or more times per year, are 1/3 less productive than non-drug-users, and have a higher turnover rate (and it costs an average of $7,000 to replace a salaried worker). With those statistics in mind, employers should be focused on exactly how they are tackling these problems – or potential problems – in their own workforce.
While this might seem like the perfect segue into a whole-hearted endorsement of drug-testing policies in all workplaces, the matter is more complex than meets the eye. In addition to the fear that drug-testing will cause a loss of employees in and of itself, COVID-19 also left its own impact on the workforce. It brought about staffing challenges even greater than those before it. Along with all of the other challenges facing businesses during that time, employers became more acutely aware of marijuana usage specifically (and understandably so, because marijuana is the most highly used drug among Americans aged 12 and older), and the most common question asked by employers during this period was: Do we have to test for marijuana?
The answer to this question requires each employer to engage in a risk/benefit analysis – taking into consideration the impact on production, liability, and workers’ compensation. Employers need to be calculated and cautious before they jump right into the drug-testing, because although Tennessee law allows employers to drug test, employees and applicants may have legal claims based on:
- How the test was conducted;
- Who was tested;
- How the results were used;
- Whether ADA protection was in place for an applicant taking medication for a disability;
- Whether an employee or a group of employees was singled out in a discriminatory manner (age, race, gender, etc.);
- Whether there was an invasion of privacy; and
- Whether there could be a claim for defamation involved.
The above examples are a non-exhaustive list of potential issues that employers need to take into account when making a decision on when, where, and how to conduct a drug test; who is tested; what substances are tested for; and what those consequences might entail.
Due to the complexity of those issues that must be addressed, an employer might simply ask, “Can we exclude marijuana from testing entirely?” “What about only from non-safety sensitive positions?” “What about reasonable suspicion testing?” “What about post-accident testing?” These questions are understandable, and in Tennessee, employers are allowed to exclude marijuana from testing. However, again, a business decision must be made, because while the exclusion of marijuana from testing may make the employer’s job easier, it could also open the employer up to liability. In addition to the legal issues, there are also practical effects and consequences on the business itself, such as on productivity, workplace environment, health and safety, mission and vision, etc.
Marijuana is also more complex than it appears. It contains important subparts: CBD and THC. Cannabidiol, or “CBD”, is one of the main compounds found in cannabis (marijuana), and is a non-psychoactive component. Delta-9-tetrahydrocannabinol, or “THC” is the psychoactive intoxicant, which results in the not-so-legal “high” that cannabis produces. There are varying levels of CBD/THC oil that are legal. In Tennessee, CBD oil containing less than 0.9% THC has been authorized for limited medical conditions, including Alzheimer’s disease, ALS, certain cancers, epilepsy or seizures, multiple sclerosis, Parkinson’s disease, HIV/AIDS, and Sickle cell disease.
Outside of those medical conditions, CBD can still be sold and purchased. However, the drug must contain less than 0.3% THC, otherwise it is illegal. The cannabis industry is quite extensive but is largely unregulated.
Assuming employers make the legal/business decision to drug test for marijuana/CBD, they will run into potential issues. All forms of marijuana and CBD products can produce a positive test result and there is no way to tell whether the result is from a legal or illegal product. Irrespective of that issue, and the presence of illegal amounts of THC (or the lack thereof), in Tennessee, employers can terminate for a positive marijuana screen.
Until this point, an appropriate (though unconfirmed) assumption has been made: that Tennessee law applies. There is, however, a chance that multi-state jurisdictional issues arise. If this is the case, then employers should consider amending their drug testing policies and procedures to ensure relevance to, and compliance with, the legal standards prescribed by each state.
While state requirements are loosely limited, at least in Tennessee, there are federal requirements that are slightly more stringent. For example, the federal government requires testing in safety sensitive industries, including transportation, aviation, contractors with NASA and the DOD, and the D.O.T. (along with F.M.C.S.A. adopted regulations regarding testing of CDL operators). If these federal regulations apply, the responsibility cannot be delegated, and employers can be held responsible for service agent errors as well as resulting civil penalties due to noncompliance.
In the interest of incentivizing employers to strive for a cleaner workforce, Tennessee created the Tennessee Drug-Free Workplace Program. Under this program, employers enjoy a 5% premium credit on Employer’s workers’ compensation insurance policies. The program also creates a presumption that in the event that an employee fails a post-injury drug test, intoxication was the proximate cause of the injury. This presumption can only be rebutted by clear and convincing evidence. In addition, termination of an employee due to a failed drug test could disqualify the employee from unemployment or enhanced workers’ compensation benefits.
Although the employer who takes part in the Tennessee Drug-Free Workplace Program receives a certain number of benefits (as listed above), some of their previously enjoyed elective decisions are struck. Under the Tennessee Drug-Free Workplace Program, employers are required to test:
- Employees in safety sensitive positions;
- Following a workplace accident that results in an injury;
- As part of routine fitness-for-duty exam (if required by the employer’s policy);
- As a follow-up to a required rehabilitation program; or
- If there is reasonable suspicion.
In the event that employees/individuals are convicted of the illegal use of marijuana/THC, is it possible to see pardons of employees/individuals? While Biden urges states to grant pardons, the federal government cannot force states to do this because the vast majority of arrests and convictions are under state and local laws. Tennessee convictions will stand and will register on a criminal background check. Tennessee Governor Bill Lee has postured that the idea of pardoning convictions for marijuana/THC usage is not even up for consideration.
The legal realm of drug testing and marijuana/CBD/THC is a daunting one. What can employers do to make their jobs easier and their expectations more concrete? The first thing they can do is be very clear and consistent about what their policy is and what their expectations are. Employees and employers should understand exactly what procedures are in place and make sure they are carried out to the letter. These policies and procedures should be clearly presented in a written policy that is easily accessible to all employees. With a clear and consistent policy, and continuous, vigorous execution, employers should find that their business runs smoother, their workforce is cleaner, and their progress, productivity, and profits begin to rise.
